# Gaurav Kumar v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 908
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-06
- **Case number:** Writ A No. 18731 of 2024
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-kumar-v-state-of-u-p-ors-53077
- **Pages:** 6

## Headnote

A. Service Law - Appointment - U.P.
Secondary Education Services Selection
Board Act, 1982 - Rule 12 r/w Rules of
1998 - Even a selected candidate has no
indefeasible right of appointment and
there must be a timeline to conclude a
process and in present case, recruitment
process was initially initiated in 2013 i.e. about
12 years ago and last supplementary select list
was published in 2018 i.e. 7 years ago and to
continue such process after so many years could
not be reasonable. (Para 16)

Writ petitions dismissed. (E-4)

Precedent followed:

Sudesh Kumar Goyal Vs St. of Har. & ors., 2023
INSC 842; (2023) 10 SCC 54 (Para 16)

## Text

908 INDIAN LAW REPORTS ALLAHABAD SERIES
other emoluments to him during the period
01.07.2014 to 30.06.2015 can be made. The
petitioner
would
be
entitled
to
the
computation of his post retiral benefits and
the determination and payment of his final
pension
regarding
his
date
of
superannuation to be 30.06.2014; not
30.06.2015. This will be done on the basis
that his date of birth is 13.06.1954.

24. In the result, this petition
succeeds and is allowed in part. The
impugned order dated 08.07.2016 passed
by the Superintendent of Police, Shamli
insofar as it directs recovery of an
amount of money equivalent to one
year's salary from the petitioner is hereby
quashed. The part of the impugned order,
determining the petitioner's date of birth
as 13.06.1954 is upheld. A mandamus is
issued to the Additional Director General
of
Police,
Headquarters,
Prayagraj/
Lucknow, the Inspector General of
Police, Meerut Range, Meerut and the
Superintendent of Police, Shamli to
ensure amongst themselves immediate
payment of the petitioner's provident
fund due, if any, the value of his
commuted pension, leave encashment and
final pension worked out in the manner
directed in this judgment. The arrears of
pension, provident fund, if not already
paid, the commuted value of pension and
leave encashment shall all be payable to
the petitioner with 6% simple interest
with annual rest.

25. There shall be no order as to
costs.

26. Let a copy of this order be
communicated to the Additional Director
General of Police, Headquarters, Prayagraj/
Lucknow, the Inspector General of Police,
Meerut
Range,
Meerut
and
the
Superintendent of Police, Shamli by the
Registrar (Compliance).
----------
(2025) 3 ILRA 908
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2025

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 18731 of 2024
alongwith other connected cases

Gaurav Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Nitish Shakya, Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Kushmondeya Shahi

A. Service Law - Appointment - U.P.
Secondary Education Services Selection
Board Act, 1982 - Rule 12 r/w Rules of
1998 - Even a selected candidate has no
indefeasible right of appointment and
there must be a timeline to conclude a
process and in present case, recruitment
process was initially initiated in 2013 i.e. about
12 years ago and last supplementary select list
was published in 2018 i.e. 7 years ago and to
continue such process after so many years could
not be reasonable. (Para 16)

Writ petitions dismissed. (E-4)

Precedent followed:

Sudesh Kumar Goyal Vs St. of Har. & ors., 2023
INSC 842; (2023) 10 SCC 54 (Para 16)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard S/Sri Prabhakar Awasthi,
Abhishek Kumar Saroj, Rahul Agarwal,
3 All. Gaurav Kumar Vs. State of U.P. & Ors.
909
Ganesh
Shanker
Srivastava,
Ashwani
Kumar Yadav, Ashutosh Pandey and
Praveen Kumar Mishra, learned advocates
for petitioners, S/Sri K. Shahi, Anil Kumar
Singh and Aakash Rai, learned advocates
for UP Education Services Selection
Commission, Sri Ashish Kumar Nagvanshi,
Sri D.P. Singh and Sri Rajesh Kumar
Tiwari, learned advocates appearing for
State.

2. Number of petitioners in present
bunch of writ petitions are in long drawn
litigation and are waiting for outcome of
their grievances which commenced when
they
have
participated
in
a
direct
recruitment
process
initiated
for
appointment
of
numbers
of
Trained
Graduate Teachers (T.G.T.) in different
subjects in numbers of Non-Government
Inter Colleges/High Schools in State of
U.P. by Uttar Pradesh Secondary Education
Services
Selection
Board
(hereinafter
referred to as "Board") through an Adv. No.
01/2013, in which they were declared
successful.

3. Some of petitioners being
aggrieved that since number of posts. so
advertised, were reduced and due to that
they were not allotted colleges, therefore,
they filed a Writ A No. 22128 of 2018
(Sanjay Kumar and others vs. State of U.P.
and others) that in terms of Rule 12 of U.P.
Secondary Education Services Selection
Board Act, 1982 read with Rules of 1998,
the Board ought to have proposed a longer
select panel (but not larger than 25%) in the
said recruitment process.

4. The said writ petition was
disposed of by an order dated 26.11.2018
and its relevant part is mentioned below
:-

"The issue raised lies in a
narrow ambit. The conduct of
recruitment
by
the
Board
is
regulated by the provisions of the
U.P. Secondary Education Services
Selection Board Act, 1982 read
with Rules 1998. Rule 11 regulates
determination of vacancy while
Rule 12 provides for procedure for
direct recruitment. Sub-Rule 8 of
Rule 12 clearly provides that in the
case of vacancy on the post of
lecturer or teacher L.T. Grade. The
select panel shall be larger (but not
larger than 25%) of the number of
vacancies. Rule 12(8) of the Rules
1998 is reproduced hereinafter:-
"The Board then, for each
category of post, prepare panel of
those found most suitable for
appointment in order of merit as
disclosed by the marks obtained by
the after adding the marks obtained
under sub-clause (4) or sub-clause
(5) above, as the case may be, with
the marks obtained in the interview.
The panel for the post of Principal
or Headmaster shall be prepared
institution- wise after giving due
regard to the preference given by a
candidate, if any, for appointment
in a particular institution whereas
for the posts in the lecturers and
trained graduates grade, it shall be
prepared subject-wise and groupwise respectively. If two or more
candidates obtain equal marks, the
name of the candidate who has
higher quality points shall be
placed higher in the panel and if the
marks obtained in the quality points
are also equal, then the name of the
candidate who is older in age shall
be placed higher. In the panel for
the
post
of
Principal
or
910 INDIAN LAW REPORTS ALLAHABAD SERIES
Headmaster, the number of names
shall be three times of the number
of the vacancy and for the post of
teachers in the Lecturers and
Trained graduate grade, it shall be
larger (but not larger than twentyfive per cent) than the number of
vacancies.
Practical exigencies like
non-availability
of
notified
vacancies would not justify the
Board from adopting a procedure
which is in derogation of what is
laid down by the statutory scheme
itself.
There
is
no
discretion
vested
in
the
commission
to
provide a panel on the post of
teachers in lecturer and L.T. Grade,
which may be less than the number
of vacancies. Vacancy itself has
been defined under Rule 2(e) of the
Rules 1998 in following words:-
"Vacancy"
means
a
vacancy arising out as a result of
death, retire- ment, resignation,
termination, dismissal or removal
of a teacher or creation of new post
or appointment or promotion of the
incumbent to any higher post in a
substantive capacity."
Once the vacancy gets
notified to the Board it would be
possible for the Board not to draw a
panel of candidates which is below
the number of posts notified to it.
The extend of discretion available
to the Board is only to increase the
number by making it larger than the
notified
vacancies
up
to
the
maximum limit of 25%. It is only
to this extend that discretion can be
exercised by the Board. However,
the vacancy which have already
been advertised cannot be reduced
by the Board so as to prepare a
panel which may be less than the
number of notified vacancies.
Law is otherwise settled
that mere selection of a candidate
does not confer indefeasible right
to be appointed by virtue of law
laid down by the Apex Court in
Shankarsan Dash vs Union Of
India 1991 AIR 1612.
Court is also not impressed
by the argument of Sri P.N. Saxena
that a fresh exercise has been got
conducted by the Board to ascertain
the vacancy for recruitment to the
post of teacher in Hindi. At this
stage when the examinations have
already been got conducted and
only a select is to be prepared by
the commission, at its own level, it
would not be justified in revising
the vacancy by calling upon the
District Inspector of Schools to
submit a fresh report. In case this is
allowed to happen the process itself
would be rendered unworkable,
inasmuch as the recruitment itself
would not be concluded for various
reasons,
including
subsequent
reports which may contradict the
earlier vacancy position already
notified to the Board. In the facts
and circumstances noticed above, I
am of the considered opinion that
the Board is under an obligation to
draw a select panel against the
advertised vacancy, which could be
larger than the total number of
vacancies
already
advertised
subject to a maximum of 25% over
and
above
it.
A
mandamus
accordingly is issued to the Board
to draw a revised select panel in
accordance with Rule 12(8), with in
a period of 4 weeks' from the date
3 All. Gaurav Kumar Vs. State of U.P. & Ors.
911
of presentation of the certified copy
of this order. The concern of the
Board otherwise stands protected
inasmuch as the appointment to
selected
candidates
would
be
restricted to the actual number of
posts which are available for being
filled up and mere drawing of
select panel would not pose any
difficulty.
The
Board
is
also
expected
to
act
further
in
accordance
with
law
for
the
purposes of filling of existing
vacancies. "

5. The Board has approached a
Division Bench of this Court against above
referred order by way of filing a Special
Appeal (D) No. 354/2019 and the Division
Bench has dismissed it vide order dated
15.10.2019. For reference, relevant part of
said judgment is quoted below :-

"It is not the case of the
appellant that the total number of
actual substantive vacancies has
been
reduced
and
those
are
required to be excluded from the
process of selection. The only
submission is that the request has
been received for preparing a
panel of selected incumbents in
less number being the vacancies
concerned occupied by ad-hoc
appointees or by the persons
regularized in service. Under the
scheme of Rules of 1998, a
process of selection is required to
be made against the substantive
vacancies. The determination of
vacancies is required to be made
by excluding factitious vacancies
such as ad-hoc appointment or the
appointment made contrary to the
Rules.
The
Board
had
recommendation for substantive
vacancies and if those are intact, no
reason is available to reduce the
strength of panel. The preparation
of panel of persons less than the
substantive vacancies available is
apparently bad. It would also be
appropriate that the direction given
by learned single Bench is only to
the extent of preparing a panel in
accordance with the provisions of
sub-Rule (8) of Rule 12 of the
Rules of 1998 with liberty to the
appointing
authority
to
make
appointment
only
against
the
existing substantive vacancies.
The direction given by the
learned single Bench as such is in
consonance to the Rules of 1998
and that does not require any
interference
in
appellate
jurisdiction."

6. In pursuance of above judgment,
a select list was published in 2018 and
according to all petitioners, they fell within
the said select list and within declared
number of posts also at the stage of
advertisement issued in the year 2013.

7. According to petitioners, still
they were not allotted colleges and when
nothing happened in contempt petitions,
they were constrained to approach this
Court in the year 2024 i.e. after awaiting
for about 5 years.

8. Pleadings were exchanged and
present cases mainly have two issues, i.e.
firstly whether explanation given by
Board/State, that vacancies were not
correctly identified as well as none of
juniors were appointed, would be a
plausible
explanation
for
reducing
912 INDIAN LAW REPORTS ALLAHABAD SERIES
vacancies and secondly whether any
timeline could to be fixed for a recruitment
process since it was considered in the year
2013 and now we are in 2025?

9.

Learned
advocates
for
petitioners have stressed upon a judgment
passed in earlier round of litigation that no
option was left with the Board not to offer
appointment to petitioners since they fell
within subsequent select list and any
explanation being vague is liable to be
rejected.

10.

Learned
advocate
for
respondents have referred documents that
number of posts were not verified and
wrongly included in the list of vacancies
and such error came into light later on after
careful
scrutiny
and
accordingly,
appointments were made against clear,
vacant and subsequent vacancy only.

11. Heard learned counsel for
parties and perused the records.

12. As referred above, it is now
much under dispute that number of posts
were advertised, result was declared for
reduced number of posts and on basis of
above referred judgment of this Court,
another select list was published and
petitioners being despite fell within it, were
not allotted schools.

13. Now the Court has to consider
whether
explanation
given
by
the
respondents that number of posts earlier
advertised remained unverified due to
various reasons assigned in detail in a long
list (subject and institution wise) has
substance. A brief chart being part of a
communication dated 28.01.2023 (from
Secretary, Secondary Education Selection
Board to Director, Education (Secondary)),
being relevant is extracted hereinafter :-

क्र०सां० दवज्ञादपत
दविय
दवज्ञादपत
पदों की
सांख्या
सत्यादपत
पदों की
सांख्या
असत्यादपत
पदों
की
सांख्या
1.
दहन्दी
909
720
189
2.
सांस्कृत
472
369
103
3.
सामादजक‌
दवज्ञान
806
656
150
4.
जीव‌
दवज्ञान
239
187
52
5.
शारीररक‌
दशक्षा
194
170
24
6.
गृह‌
दवज्ञान
135
113
22
7.
उदूज
35
27
08
8.
कला
267
243
24
9.
दवज्ञान
929
713
216
10.
अांग्रेजी
848
676
172
11.
गदणत
1036
805
231
12.
वादणयय
45
36
09

14. As referred above, total
number of verified posts are 4715 and
number of unverified posts are 1200 and
specific details are also provided in subject
wise list annexed with personal affidavit
such as चयन बोडज द्वारा चयदनत, सत्यापन का कारण अांदकत
नहीं, पद िरा हुआ, पद दो बार अदधयादचत है,
सत्यादपत/असत्यादपत सूचना अप्राप्त, स्थानान्तरण हो चुका है,
सामान्य जादत का कोटा पूणज, दोबारा अांदकत हो गया, नवीन
जनशदक्त में पद समाप्त या पद कम, मृतक आदश्रत कोटे से पद
िरा इत्यादद. Such details being part of a
personal
affidavit
and
without
any
contrary material could not be considered
to be false. It is true that such exercise
ought to be undertaken when initially
number of posts were advertised. It
appears that it were advertised in haste
without proper verification of clear and
vacant posts.
3 All. M/S Anandeshwar Agro Foods Pvt. Ltd. Vs. The State of U.P. & Ors.
913
15. There is no material to dispute
reasons assigned in the chart and details
referred above and once there are no vacant
posts, claim of petitioners cannot be
accepted.

16. The Supreme Court has
reiterated in Sudesh Kumar Goyal vs.
State of Haryana and others, 2023 INSC
842 : (2023) 10 SCC 54 that even a
selected candidate has no indefeasible right
of appointment and there must be a
timeline to conclude a process and in
present case, recruitment process was
initially initiated in 2013 i.e. about 12 years
ago and last supplementary select list was
published in 2018 i.e. 7 years ago and to
continue such process after so many years
could
not
be
reasonable.
Relevant
paragraph of Sudesh Kumar (supra) is
quoted below :-

"18. In
view
of
the
reasoning given by the respondents
for appointing only 13 selected
candidates leaving the appellant
who was at Sl. No. 14, we are of
the opinion that the respondents
have justified the appointments and
have not acted in an arbitrary
manner. The respondents have
acted fairly and logically without
any malice against the appellant.
Thus, on the touchstone of the
decision cited on behalf of the
appellant himself, we do not find
any arbitrariness on the part of the
respondents.
Therefore,
the
decision of the Division Bench of
the High Court is not liable to be
disturbed on the above count, more
particularly when the appellant
has not acquired any indefeasible
right to be appointed because he
qualified in the selection process.
20. This apart, as may be
noticed that the procedure for
selection of superior/higher judicial
service
officers
by
direct
recruitment from the Bar was
initiated by the Punjab and Haryana
High Court way back in the year
2007 and now we are in the year
2023 meaning thereby that 16
years have passed by in between.
It would be a travesty of justice to
keep open the selection process
for such a long time and to direct
at
this
stage
to
make
any
appointment on the basis of a
selection process initiated so far
back. For this additional reason
also, we do not deem it proper to
interfere
with
the
impugned
judgment
and
order
[Sudesh
Kumar Goyal v. State of Haryana,
CWP No. 16211 of 2009 sub
nom Keshav Kaushik v. State of
Haryana, 2010 SCC OnLine P&H
5043] of the High Court."

17. Accordingly, present bunch of
writ petitions are dismissed.
----------
(2025) 3 ILRA 913
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2012

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 15023 of 2024

M/S Anandeshwar Agro Foods Pvt. Ltd.
 ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: